Heeley & Heeley
[2023] FedCFamC1F 56
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1
FIRST INSTANCE
Heeley & Heeley [2023] FedCFamC1F 56
File number(s): BRC 10121 of 2017 Judgment of: CAREW J Date of judgment: 13 February 2023 Catchwords: FAMILY LAW – PARENTING – Sole parental responsibility to the mother and no time with the father – Where matter proceeded as undefended upon father’s failure to appear – Allegations that the father repeatedly raped mother’s child during relationship and father subsequently charged with rape and indecent treatment of child under 16 – Where father’s acquittal of charges does not ameliorate risk – Where overall evidence supports finding of unacceptable risk of harm Legislation: Evidence Act 1995 (Cth)
Family Law Act1975 (Cth)
Cases cited: Banks & Banks (2015) FLC 93-637
Baghti & Baghti and Ors [2015] FamCAFC 71
Eastley & Eastley [2022] FedCFamC1A 101
Isles and Nelissen [2022] FedCFamC1A 97
Johnson & Page (2007) FLC 93-344
N and S and the Separate Representative (1996) FLC 92-655
Number of paragraphs: 43 Date of hearing: 13 February 2023 Place: Brisbane For the Applicant: Did not participate Counsel for the Respondent: Mr N Batty Solicitor for the Respondent: Norris Law Counsel for the Independent Children’s Lawyer Mr A Collins Solicitor for the Independent Children’s Lawyer Forest Glen Lawyers
EX TEMPORE ORDER
BRC 10121 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HEELEY
Applicant
AND: MS HEELEY
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
CAREW J
DATE OF ORDER:
13 February 2023
THE COURT ORDERS:
1.That all previous parenting Orders be discharged.
2.That the children X born 2010, Y born 2011 and Z born 2013 (“the children”) live with the mother.
3.That the mother have sole parental responsibility for the children.
4.That the father not spend any time or communicate with the children.
NOTATION:
A.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAREW J.
Mr Heeley and Ms Heeley have three children together, namely X, aged 12 years, Y, aged 11 years and Z, aged 9 years (“the children”). The children live with the mother, who relocated to Melbourne after separation in 2017.
The father has only seen the children twice since separation, once during the first family report interviews in May 2018 and for one week during school holidays in 2018. The father did not attend the interviews for the second family report in February 2022 although there was a brief telephone conversation between the father and the report writer. Notwithstanding the father’s application for the children to live with him, he has not filed any material in accordance with my trial directions made 24 October 2022 and has failed to appear for the final hearing. The father also failed to appear at the trial directions hearing but was provided with a transcript of that hearing. The trial directions order included notification that if the father failed to appear at the trial, a final order would be made in his absence.
This is also a matter where the mandatory provisions of s 102NA of the Family Law Act1975 (Cth) (“the Act”) apply as a result of a final protection order made against the father for the protection of the mother and the children which remains in place until 2027. If the father had appeared he would not have been permitted to cross-examine the mother. The father had the opportunity of applying for legal assistance under the Commonwealth Family Violence and Cross Examination of Parties Scheme and was advised to do so in the trial directions made 24 October 2022. The father did not do so.
The independent children’s lawyer (“ICL”) recommends a final order be made that the children live with the mother, that she have sole parental responsibility and that the father not spend any time with the children nor communicate with them. The mother adopts the ICL’s recommendation, although the order formally sought by the mother proposes an order that the father be at liberty to spend supervised time upon notice being given to her.
BRIEF BACKGROUND
The father is 63 years of age and is unemployed. He continues to reside in the former matrimonial home, on a rural property outside of J Town, Queensland. The mother is 42 years of age and employed in healthcare. Shortly after separation, the mother relocated with the children to Melbourne.
The parties commenced a relationship in 2007, married in 2008 and separated on a final basis in June 2017. As indicated above, the parties lived on a rural property and the children were home schooled.
In 2018 the mother commenced a de facto relationship with Mr L, aged 43. Mr L has one child of a previous relationship, M, aged 12, whom he spends weekend time with each fortnight. Mr L is employed full time. The mother and Mr L have one child together, namely, V, aged four years.
The mother has two other children, now adults, Mr F aged 22 and Ms W aged 20.
In 2017 a protection order was made against the father for the protection of the mother and children. The protection order arose out of the circumstances of the separation which the mother describes as involving the father attacking her car while she and the children fled. The father had, according to the mother, a history of coercive and controlling behaviour which involved, among other things, his control of who the mother saw and when, and his insistence that the children be home-schooled. Matters escalated when in mid-2017, the father threatened the mother saying – “I could easily shoot you and burn your body with bull-oak. No one would ever find you”.
After separation the mother was told by her daughter, Ms W, that the father had touched her inappropriately. In 2018, the father was charged with multiple serious offences involving a child, namely, the mother’s daughter, Ms W. The offences in question were alleged to have occurred in 2017, when Ms W was 14, and while the mother and father were still married and residing together.
The mother says she did not know the detail of the father’s conduct until criminal proceedings in 2021. The father was acquitted of all charges in early 2021.
When setting this matter down for trial, the following issues were identified as probable issues requiring determination:
(1)Does the father pose an unacceptable risk of sexual harm and/or violence to the children?
(2)Does the mother pose an unacceptable risk of physical harm to the children?
(3)Does the mother’s partner, Mr L, pose an unacceptable risk of harm to the children by reason of his acknowledged alcohol abuse?
(4)What impact, if any, does the mother’s mental health have on her parenting capacity?
(5)In the event the father is not found to pose an unacceptable risk of harm to the children, will the mother comply with any court order for the children to spend time with the father?
(6)Would the father adequately attend to the children’s health and other needs if they were to live with him?
(7)If either household poses an unacceptable risk of harm to the children, would supervised time ameliorate the risk?
(8)What are the practical implications of the mother and father living so far apart and, in particular, will the father spend time with the children if he is permitted to do so?
(9)Do the parents have capacity to make joint decisions about major long term issues affecting the children?
Despite the father not participating in the trial, I nevertheless need to be satisfied that the proposed order is in the children’s best interest in the given circumstances.
WHAT LAW GOVERNS THE DETERMINATION OF A PARENTING DISPUTE?
In parenting proceedings under the Act , s 43 of the Act requires the Court to have regard to a number of matters including:
(a)The need to protect the rights of children and to promote their welfare; and
(b)The need to ensure protection from family violence.
Every parenting decision requires the application of the relevant parts of Part VII of the Act which set out the objects, principles and matters that must be considered when determining what parenting order is proper.[1]
[1] Family Law Act 1975 (Cth) s 65D.
A ‘parenting order’ is defined by s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility;
(d)The communication a child is to have with another person or persons.
The objects and principles of Part VII of the Act are set out in s 60B(1) and s 60B(2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur. A particular object of the Act is to ensure that children receive adequate and proper parenting to help them achieve their full potential (s 60B(1)(c)).
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of a child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and additional considerations including: any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child, and any other fact or circumstance considered relevant (s 60CC).
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Family violence is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.
In cases involving allegations of abuse or family violence, a positive finding should not be made unless the Court is satisfied on the balance of probabilities[2] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[3] and proof to the reasonable satisfaction of the Court, “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[4] Where a positive finding is not made but it is nevertheless not possible to reject an allegation as groundless, the Court is required to assess and evaluate the magnitude of any risk to the child and to determine whether the risk of harm is unacceptable.[5]
[2] Evidence Act 1995 (Cth) s 140.
[3] M v M (1988) 166 CLR 69.
[4] Ibid.
[5] M v M (fn 3); N and S and the Separate Representative (1996) FLC 92-655.
When assessing the nature and magnitude of a risk posed by a parent, all relevant evidence must be considered as part of the “matrix of evidence”[6] to determine whether or not the possible risk of future harm is unacceptable and, in making that determination, it is not necessary to make findings of fact on the balance of probabilities on each piece of relevant evidence (or even any), although caution is required if concluding that a risk is unacceptable where no such findings are made.[7] When assessing whether a risk is unacceptable, the Court is concerned with possibilities and not probabilities.[8] Whether a risk is found to be unacceptable is not determined on the balance of probabilities according to the civil standard of proof.[9]
[6] Eastley & Eastley [2022] FedCF1A 101 at [31] (“Eastley”).
[7] Johnson & Page (2007) FLC 93-344 at 81,890, [68]-[71] (adopting the extra curial commentary by the Hon. John Fogarty AM) NB. Johnson & Page was overturned by Isles and Nelissen [2022] FedCFamC1A 97 (“Isles”) but not on this point which was subsequently confirmed by Eastley.
[8] Isles at [7].
[9] Isles at [81].
When considering the parenting dispute more broadly, it is not necessary to make findings of fact on every factual dispute raised by the parties.[10] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case, and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion”[11] on each and every factual dispute.
[10] Baghti & Baghti and Ors [2015] FamCAFC 71.
[11] M v M (fn 3) at 76.
Until a contrary order is made by the Court, each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child (s 61C). There is a presumption in favour of equal shared parental responsibility which does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of a child or family violence (s 61DA).
Section 65DAC makes it clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act I have considered all sections as required when making my determination.[12]
[12] Banks & Banks (2015) FLC 93-637.
I have been assisted by written outlines by both counsel appearing in the matter, two family reports and a tender bundle which became Exhibit 1 in the proceedings. In the absence of the father, the proceedings are of course considerably truncated and the question arises as to whether or not I need made certain findings against the father in the circumstances. It seems to me that as the ICL is seeking a no time and no communication order, certain findings that would support such an order are necessary, if available on the evidence.
DOES THE FATHER POSE AN UNACCEPTABLE RISK OF SEXUAL HARM AND/OR VIOLENCE TO THE CHILDREN?
Although the father was acquitted of the charges involving Ms W, that does not determine the broader issue of whether or not he poses an unacceptable risk of future harm to the subject children. The standard of proof in criminal proceedings i.e. beyond reasonable doubt, is of course a much higher standard that in civil proceedings i.e. on the balance of probabilities. Even where I am unable to make positive findings against the father in relation to particular evidence I can nevertheless have regard to the ‘matrix of evidence’ in determining the magnitude of risk.
In this case, Ms W alleged that the father repeatedly raped her and sexually assaulted her on a number of occasions. The description of those events as contained in her police interview are extremely detailed and on their face plausible.
I also note that in 2011, a complaint was made against the father by a female tourist in which she alleged the father sexually assaulted her. The father was not charged as the police considered a conviction was unlikely as it was just her word against his and the father denied the allegations. The complaint made to police was specific and detailed and no apparent motive for making up such allegations is apparent on the face of the material. The complainant left Australia shortly after the alleged incident.
In 2015, a further complaint was made against the father by a male tourist who was allegedly assaulted by the father. The father was to be charged but the matter did not proceed because the complainant left Australia shortly after the alleged incident.
Having regard to all of these matters and the serious nature of the family violence allegations made by the mother, in my view, the evidence supports a finding of unacceptable risk, when taken together.
DOES THE MOTHER POSE AN UNACCEPTABLE RISK OF PHYSICAL HARM TO THE CHILDREN?
DOES THE MOTHER’S PARTNER, MR L, POSE AN UNACCEPTABLE RISK OF HARM TO THE CHILDREN BY REASON OF HIS ACKNOWLEDGED ALCOHOL ABUSE?
WHAT IMPACT, IF ANY, DOES THE MOTHER’S MENTAL HEALTH HAVE ON HER PARENTING CAPACITY?
In relation to the three issues identified as concerning the mother and her partner, there is no persuasive evidence that the mother poses an unacceptable risk of harm to the children. The father’s allegation appears to have arisen in circumstances where he said the mother lashed out at the children when suffering from a medical condition many years ago. The mother acknowledges that many years ago she was diagnosed with the condition but contends she has not had any symptoms for many years. The mother also concedes suffering from post-natal depression in 2013 but has long since recovered. I note that the mother completed study and now works in healthcare.
The mother and Mr L concede that he has had an issue with alcohol abuse on occasion in the past which led to an altercation in 2019. The mother contacted police as Mr L had consumed a large quantity of alcohol and proceeded to smash up furniture and was yelling and screaming. I suspect the mother is downplaying the seriousness of this incident but in any event she acted appropriately and called the police. Mr L left the premises for three months and undertook counselling. Mr L returned to live with the mother and children but the mother says they no longer keep alcohol in the house and there has been no recurrence of such behaviour. There is no evidence to the contrary.
OTHER ISSUES
In the circumstances I do not consider it necessary to separately consider the remaining issues.
WHAT PARENTING ORDER IS PROPER?
I am satisfied that the children are progressing well at school. They appear to have very full lives and are involved in numerous activities. Y has been diagnosed with a number of conditions including Attention Deficit Hyperactivity Disorder (“ADHD”) and Autism Spectrum Disorder (“ASD”) which the mother appears to be addressing appropriately by engaging with a paediatrician. X has been diagnosed with a medical condition which is also being appropriately monitored.
The presumption in favour of equal shared parental responsibility does not apply in this case given that there are reasonable grounds to believe that the father has engaged in family violence. In any event, such an order would not be in the best interests of the children given the history of dispute between the parents.
The father has had no involvement with the children or any decisions concerning them since 2018.
When interviewed for the second family report in February 2022, Mr N, the family report writer, noted that there had been some hardening of the children’s attitude towards the father since the first family report, with the boys clearly stating they did not want any future involvement with the father. Z was more ambivalent and was somewhat disappointed the father did not show up at the interviews. The mother and children had travelled from Victoria for the interviews. As already noted the children have had no contact with the father since then.
Mr N opined, in particular, as follows:
95. In my view, the parenting dispute has endured for a very long time. I suspect that the family would benefit from some closure and, in association with that, greater security in regard to future parenting arrangements.
96. I would not discount the possibility that the children may have some feelings of rejection in association with the fact that, in their eyes, [Mr Heeley] has not made efforts to establish and maintain some continuing participation in their lives.
97. In my opinion, should the Court form a view that there should be some continuing provisions for his participation, it is important that there be a firm and sustainable commitment from the father. In that regard there are some negative emotional/psychological implications should he simply drop in and out of the children's lives.
98. It continues to be my view that the children are settled in Melbourne and, in the context of this very limited assessment, there is no evidence that they are at any significant risk in the home of their mother.
I accept Mr N’s observations and opinions. Even had I not found the father posed an unacceptable risk of harm, I would not have made an order for the children to spend time with the father due to the uncertainty surrounding the father turning up. The father has a history of failing to attend visits and that no doubt has taken its toll on the children. Understandably, Mr N did not feel able to formally make any particular recommendations given the father’s limited participation in the family report process.
In my view, the order recommended by the ICL and adopted by the mother is entirely appropriate in the circumstances.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 13 February 2023
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